Loi sur les licences d'affaires (Cap 249), Vanuatu

Business Licence Act [Cap 249]

LAWS OF THE REPUBLIC OF VANUATU Consolidated Edition 2006

Commencement: 1 August 1998

CHAPTER 249

BUSINESS LICENCE

Act 19 of 1998 Act 9 of 1999 Act 6 of 2000 Act 50 of 2000 Act 29 of 2001 Act 5 of 2004 Act 45 of 2005 Act 1 of 2006

ARRANGEMENT OF SECTIONS

1. Interpretation 2. Business licence 3. Licensing authority 4. Application for licences 5. Issue of licence 6. Foreign investors’ entitlement to business licence 7. Issue of business licence – business listed in section 13 8. Issue of business licence – business not listed in section 13 9. Renewal of business licences 10. Transfer of business licences 11. Reasons for decision 12. Appeal 13. Minister to approve or refuse applications in certain cases 14. Licence to be displayed 15. Licences lost or destroyed 16. Power of search 17. Confidentiality of information 18. Fees 18A. Certain businesses to pay fees quarterly 18B. Pro-rata payment of business licence fee 18C. Distrain for unpaid fee 19. General provisions 20. Revenue from fees 21. Abatement of fees 22. Reduction of fees 23. Penalties 24. Cancellation of licence 25. Rules 26. Repeal SCHEDULE 1 – Rates of business licence fee SCHEDULE 2 – Exemption from licences

____________

BUSINESS LICENCE

To provide for the licensing of businesses and for matters connected therewith. 1. Interpretation In this Act unless the context otherwise requires:

"approval certificate" means an approval certificate issued by the Vanuatu Investment Promotion Authority;

"business" means any lawful form of trade, commerce, profession, craftsmanship, calling or other activity carried on for the purpose of gain, provided that a person shall not be deemed to carry on a business in respect of which his sole gain is by way of salary or wages;

"Director" means the director of the department of Government responsible for the administration of business licences;

"employee" means an individual who works under a contract of employment whether written or oral and any related expression shall be construed accordingly;

"foreign investor" has the same meaning as in the Vanuatu Foreign Investment Promotion Act [Cap. 248];

"investment proposal" has the same meaning as in the Vanuatu Foreign Investment Promotion Act [Cap. 248];

"licensing authority" means a licensing authority referred to in section 3;

"Minister" means the Minister responsible for finance;

"negative list" means the list of activities in Schedule 1 of the Vanuatu Foreign Investment Promotion Act [Cap. 248];

"person" includes any company or association or body of persons corporate or unincorporated;

"premises" includes buildings, ships, vehicles or other places where a business is carried on, together with any place which constitutes a necessary annex to the principal place of business;

"proprietor" means the owner of a business or any natural person or corporation carrying on a business within Vanuatu or his or its own account, in association with others or on behalf of a person outside Vanuatu;

"reserved occupation" means an occupation declared under section 9 of the Labour (Work Permits) Act to be a reserved occupation.

"Vanuatu Investment Promotion Authority" means the Board established by the Vanuatu Foreign Investment Promotion Act [Cap. 248];

2. Business licence (1) Subject to the exemptions contained in Schedule 2, no person shall carry on a business without a licence issued under this Act. (2) Any person (other than a person exempted under Schedule 2) who carries on a business without a licence shall be guilty of an offence. Penalty: fine not exceeding VT 500,000 or imprisonment not exceeding 1 year or both. (3) Where a person is charged under this section with carrying on any business without a licence, the burden of proving that a licence was issued to him in respect of the current year shall be on that person. 3. Licensing authority (1) There shall for the purposes of this Act be the following licensing authorities:

(a) in respect of a municipality, the Minister;

(b) in respect of all other areas of Vanuatu, local government councils;

(c) in respect of business licences of the kind mentioned in sections 8, 9 and 10 – the Director.

(2) The Director may in writing delegate his or her functions to his or her subordinate, except his power of delegation. (3) The instrument of delegation must state:

(a) the functions delegated; and

(b) the period of the delegation.

(4) The following provisions apply to a delegation by the Director:

(a) the delegation may be made to a person by name or to the person holding, or performing the duties of, a specified office or position;

(b) the delegation may be made generally or limited as specified in the instrument of delegation;

(c) a function or power delegated, when performed by the delegate, is taken to have been performed by the Director;

(d) the delegation of a function does not prevent the Director from performing the function;

(e) if the function delegated requires the forming of an opinion by the Director, the function may be performed by the delegate on the delegate’s opinion.

4. Application for licences (1) Every application for the issue or renewal of a licence under this Act shall be made to the licensing authority in such form as may be prescribed by the Director. (2) Any person who, without reasonable cause for believing it to be true, makes, or aids and abets the making of any false statement in any application made under this section shall be guilty of an offence. Penalty: a fine not exceeding VT 500,000 or imprisonment not exceeding six (6) months or both. 5. Issue of licence (1) The issue or renewal of a licence under this Act shall be in the form prescribed by the Director. (2) A licence shall expire on the last day of December of the year of issue and may be renewed. (3) A renewal of a licence shall be for a period of one (1) year or for such shorter period as the Minister may, by notification in the Gazette, determine in respect of any particular business activity. 6. Foreign investors’ entitlement to business licence A foreign investor who has received an approval certificate from the Vanuatu Investment Promotion Authority for an investment proposal is entitled to be issued with the business licences specified in the certificate for the proposal. 7. Issue of business licence – business listed in section 13 (1) If a foreign investor:

(a) produces to the Minister an approval certificate that specifies a business licence for a business listed in section 13; and

(b) gives the Minister a completed application form; and

(c) pays the business licence fee payable for the licence, in accordance with section 18,

(d) the Minister must direct the Director to issue to the investor the business licences specified in the certificate.

(2) If:

(a) a person other than a foreign investor applies for a business licence for a business listed in section 13; and

(b) the person pays the business licence fee payable for the licence, in accordance with section 18; and

(c) if the applicant is not a citizen – the business does not involve an activity that is a reserved occupation; and

(d) the business does not involve an activity that is on the negative list;

(e) the Minister must direct the Director to issue the business licence to the person.

(3) The Minister must give the direction within seven (7) days after the foreign investor complies with subsection (1), or the person complies with subsection (2). (4) If the Minister does not within seven (7) days direct the issue or refusal of the licence:

(a) the Minister is taken to have approved the issue of the licence; and

(b) the Director must issue the licence.

(5) If the business licence involves a business situated in an area that is outside a municipality, references to the Director in this section are to be read as references to the local government council for the area. 8. Issue of business licence – business not listed in section 13 (1) If a foreign investor:

(a) produces to the Director an approval certificate that specifies a business licence for a business not listed in section 13; and

(b) gives the Director a completed application form; and

(c) pays the business licence fee payable for the licence in accordance with section 18;

(d) the Director must issue to the investor the licences specified in the certificate.

(2) If:

(a) a person, other than a foreign investor, applies for a business licence not listed in section 13; and

(b) the person pays the business licence fee payable for the licence in accordance with section 18; and

(c) the applicant is not a citizen and the business does not involve an activity that is a reserved occupation; and

(d) the business does not involve an activity that is on the negative list;

the Director must issue the business licence to the person. (3) The Director must issue the business licence within five (5) working days after the foreign investor complies with subsection (1), or the person complies with subsection (2). (4) If the business licence involves a business situated in an area that is outside a municipality, references to the Director in this section are to be read as references to the local government council for the area.

9. Renewal of business licences If a person (whether a foreign investor or not) to whom a business licence was issued under section 5, 6, 7 or 8;

(a) applies for the renewal of the licence; and

(b) pays the fee payable for the licence;

the Director or local government council, as the case requires, must renew the business licence. 10. Transfer of business licences (1) Subject to this section, a business licence may be transferred. (2) The holder of a business licence must give the Director or, if the licence was issued by a local government council, that council, notice that the holder proposes to transfer the licence. (3) The notice must state:

(a) the business licence number; and

(b) the name and address of the holder; and

(c) the location and nature of the business; and

(d) the name and address of the transferee; and

(e) the date of the transfer.

(4) The Director or the local government council concerned must:

(a) cancel the existing business licence; and

(b) issue a new business licence to the transferee on payment of the business licence fee, unless:

(i) to do so would result in the transferee having a monopoly of the business concerned in the area concerned, and the transferor did not have an existing monopoly; or

(ii) the transferee is a foreign investor who does not produce an approval certificate; or

(iii the transferee is not entitled to the business licence under this Act.

(5) However, the Director or local government council may issue the new business licence if:

(a) to do so would result in the transferee having a monopoly of the business concerned in the area concerned; but

(b) in the Director or council’s opinion the monopoly would not be detrimental to the public interest.

(6) The Director or local government council must issue the new business licence within seven (7) days of receiving the application and the fee.

11. Reasons for decision If:

(a) the Minister refuses to direct the Director or the local government council to issue a business licence; or

(b) the Director or the local government council refuses to issue, renew or transfer a business licence;

the Minister, Director or local government council, as the case requires, must:

(c) record the decision, and reasons for the decision, in writing; and

(d) send a copy of the decision and the reasons:

(i) to the applicant; and

(ii) if the applicant is a foreign investor – to the Vanuatu Investment Promotion Authority; and

(iii) if the applicant is a foreign investor for whom a local agent is acting – to the agent;

within seven (7) days of making the decision.

12. Appeal (1) A person may appeal to the Minister against a decision of the Director or local government council refusing to issue, renew or transfer a business licence. (2) The Minister must consider and decide the matter within 30 days. (3) The Minister must:

(a) record his or her decision, and the reasons for the decision in writing; and

(b) send a copy of the decision and the reasons to the person within seven (7) days of making the decision.

(4) A person may appeal to the Supreme Court against a decision of the Minister under section 7 or under subsections (2) and (3), refusing to direct the Director or local government council to issue, renew or transfer a business licence; (5) The Supreme Court has jurisdiction to hear and determine an appeal brought under this section. 13. Minister to approve or refuse applications in certain cases (1) Where an application is made to a local government council or the Director for the issue or renewal of a licence to which this section applies, the local government council or the Director shall refer such application to the Minister and shall grant or refuse the application as directed by the Minister. (2) In giving the direction, the Minister must act in accordance with sections 6 to 12. (3) This section applies to licences in respect of businesses in any of the following business activities:

Mining for minerals; Quarrying and Other Mining; Logging; Abattoirs and meat packing; Canneries; Oil mills; Distilleries; Breweries; Commercial banks; Air transport operators; Trust, finance and investment companies; Local insurance companies; Insurance brokers and agents; Accounting practitioners; Engineering and architectural services or practitioners, surveyors and draftsmen; Business, financial and management services and consultants, advertising and marketing services.

14. Licence to be displayed (1) Every licence shall be displayed and kept displayed in a prominent place by the licence holder on the premises to which it relates and shall be made available at any hour at which such premises are normally open for business for inspection by any person authorized under this Act to demand its production. (2) Every licensing authority or person authorized in writing in that behalf by any licensing authority, and every police officer is authorized to demand the production of any licence issued under this Act. (3) A licence holder or other person having custody of a licence who, without reasonable excuse, fails to produce such licence upon lawful demand being made to him in that behalf shall be guilty of an offence. Penalty: fine not exceeding VT 100,000. 15. Licences lost or destroyed Where it is shown to the satisfaction of the licensing authority by which a licence was issued that such licence has been lost or destroyed, it shall, upon payment of the prescribed fee, issue a duplicate of such licence to the licence holder.

16. Power of search A person authorized in writing in that behalf by any licensing authority and by the Public Prosecutor may without warrant enter and search premises during normal business hours for the purposes of ascertaining the category of the business or assessing the licence fee and the identity of the proprietor thereof. The proprietor shall make available for inspection on demand by any such person books, documents, electronic records however recorded or any other records relating to the business and copies thereof or extracts there from may be made. The provisions of this section shall not derogate from any privilege or immunity arising with respect to such premises, proprietor, books, documents or records under the provisions of any law applicable thereto within Vanuatu. 17. Confidentiality of information Information relating to the business of any person obtained under section 16 shall be treated as strictly confidential and shall not be disclosed save for the purposes of any prosecution with respect to the business. 18. Fees (1) Subject to the provisions of this Act, there shall be payable in respect of a licence issued under this Act, a business licence fee as prescribed in Schedule 1. (2) The fee provided in subsection (1) shall be an annual fee and shall be due and paid on the first day of the month in which the business is first commenced and thereafter –

(a) where the fee payable does not exceed VT 20,000 shall be paid in full on or before the 31st of January of each succeeding year;

(b) where the fee payable exceeds VT 20,000, shall be paid in two equal instalments on or before the 31st January and 31st July each year.

(3) The fee provided in subsection (1) together with any increase provided for in subsection (4) shall be recoverable by the licensing authority as a civil debt. (4) If the business licence fee has not been paid in full or in part by instalments in accordance with subsection (2), that fee or part of the fee remaining unpaid shall be increased by 10% for each month or part thereof during which the fee remains unpaid. (5) The Director may, with the approval of the Minister, remit in whole or in part the increase imposed under subsection (4) where:

(a) the business becomes insolvent;

(b) the business becomes subject to unforeseen adverse trading conditions affecting its financial capability;

(c) an inadvertent error or omission is made in good faith in the completion of a business licence application form or in the calculation of the fee; or

(d) undue financial hardship would be caused by the imposition of such an increase.

18A. Certain businesses to pay fees quarterly (1) The business licence fee payable for a business specified in category F1, F2, F3 or F4 of Schedule 1 is to be paid on a quarterly basis by the holder of the business licence. (2) The business licence fee:

(a) is to be calculated on turnover in accordance with the provisions in Class F of Schedule 1; and

(b) is payable within 14 days, or such longer period as is prescribed by the rules, after the end of each quarter.

(3) A declaration in the form prescribed by the rules is to accompany payment of the fee for each quarter. (4) To avoid doubt, this section applies despite any other provision of this Act. (5) In this section:

"quarter" means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October in the year beginning on 1 January 2000 or any later year.

18B. Pro-rata payment of business licence fee If a business licence is issued to a person after 31st January of each year, the fee will be paid on a pro-rata basis for each month from the first day of the month on which the business first commenced. 18C. Distrain for unpaid fee (1) The Director may levy distress on goods (other than real property) and chattels and money of a person who is issued a licence under this Act to operate a business, if the person refuses or fails to pay any fee payable in respect of a licence issued under this Act or any other amount recoverable from the person under this Act. (2) The Director may:

(a) apply money referred to in subsection (1) against the fee payable by the person and any other amount recoverable from the person under this Act; or

(b) provide for the disposal of any such goods or chattels by supply or otherwise to recover the amount of fee payable by the person and any other amount recoverable from the person under this Act including the costs and expenses of the disposal.

19. General provisions (1) A licence shall be required in respect of each and every premises at which a business is carried on other than premises used for storage or other purposes which are incidental to the carrying on of the business: Provided that one licence shall suffice for premises which are immediately adjacent and intercommunicating. (2) Where a person carries on more than one business or category of business, he shall take out a licence in respect of each business or category of business: Provided that in any case where a person is liable to pay more than one licence fee as aforesaid and where any business is of such minor extent that it is only incidental to another business or a necessary adjunct thereto, such person shall be exempted from the obligation to take out a licence and pay any fee therefore. (3) Where two or more persons are carrying on a business independently of each other at the same premises a licence shall be taken out in respect of each business. (4) Where a licence is taken out for a newly formed business for part of a year only the fee payable shall be proportionate to the period covered by the licence and for the purpose of the assessment of that proportion any part of a month shall count as a whole month. (5) Where during the course of the year the nature or extent of a business changes for whatever reason thereby rendering the licence holder liable to the payment of a different licence fee he shall forthwith so inform the licensing authority and shall pay or receive such adjustment of fee as may be appropriate. (6) A licence may be surrendered to the licensing authority at any time and thereupon the licence holder shall be entitled to a proportionate refund of the licence fee commencing from the first day of the month next following. 20. Revenue from fees (1) All fees collected by a local government council under this Act shall become part of the recurrent revenue of such council. (2) All fees collected by the Director or the Minister under this Act shall be paid into the Public Fund. 21. Abatement of fees (1) The Director, with the approval of the Minister, having regard to the actual level of turnover or gross income of any business in order to avoid hardship may, at his discretion, abate the licence fee payable in respect of any person or business by such amount not exceeding 50 percent (50%) of the fee, as he may think fit. (2) A local government council, having regard to the probable level of turnover or gross income of any business within the area of its jurisdiction being a business of any of the categories specified in Schedule 1 and in order to avoid hardship may, at its discretion, abate the licence fee payable in respect of that business by such amount not exceeding 50 percent (50%) of the fee, as it may think fit. 22. Reduction of fees The licensing authority may reduce the fee in respect of:

(a) part time businesses; or

(b) newly formed businesses:

Provided that no reduction shall be in excess of 50 percent (50%) of the fee and provided further that no such reduction shall be granted to newly formed businesses for more than three (3) consecutive years, in respect of any one licence holder. 23. Penalties (1) Any person who fails to pay a requisite licence fee including any increase imposed in accordance with section 18(4) within a period of six (6) months from the date when the fee is due shall be guilty of an offence and liable on conviction to a fine not exceeding VT 500,000. (2) Any person who fails to comply with any condition imposed in accordance with section 5 shall be guilty of an offence and liable on conviction to a fine not exceeding VT 50,000. (3) Any person who obstructs the proper exercise of the powers of an authorized person under section 16 shall be guilty of an offence and liable on conviction to a fine not exceeding VT 100,000 or to imprisonment not exceeding three (3) months or to both. (4) Any person who knowingly makes a false declaration for the purposes of evading or attempting to evade all or any part of the licence fee payable under this Act shall be guilty of an offence and liable on conviction to a fine not exceeding VT 500,000 or to imprisonment not exceeding one (1) year or to both. (5) Where an offence under subsections (1), (2) and (4) of this section has been committed by a corporate body, every person who at the time of the commission of the offence was a director, general manager, secretary or other senior officer of that body corporate or acting or purporting to act in any such capacity shall be guilty of the offence unless he proves that the offence was committed without his consent or knowledge and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions and capacity and in all the circumstances.

24. Cancellation of licence Where a licence holder is convicted of any offence under this Act or any law providing for the payment of a tax, or value added tax or customs or excise duty, the Minister may cancel his licence, and no refund of fees shall be payable. 25. Rules The Minister may make rules and may prescribe anything which is necessary or convenient to be prescribed for the carrying out or giving effect to, but which is not inconsistent with, this Act. 26. Repeal The Business Licence Act [Cap. 173] is repealed.

SCHEDULE 1

(Section 18)

RATES OF BUSINESS LICENCE FEE

SCHEDULE 2

(Section 2)

EXEMPTION FROM LICENCES

Teachers and professors in schools or institutions not conducted for profits Masters, officers and crews of merchant or trading vessels unless they are engaged in business Non-proprietary clubs, whose main purpose is social, cultural, sporting or educational and are not conducted for profit Religious missions and ministers of religion Exporters of any products from Vanuatu A credit union registered under the Credit Unions Act [Cap. 256] A person operating a micro finance or micro credit scheme that is registered with the Vanuatu Financial Services Commission as a charitable organisation. _________________________ Table of Amendments 1 Amended by Act No. 9 of 1999 4 Amended by Act No. 9 of 1999 13 Amended by Act No. 6 of 2000 18A Inserted by Act No. 6 of 2000 18B,18C Inserted by Act 45 of 2005 Sched 1 Amended by Acts 6 of 2000, 50 of 2000, 29 of 2001, 5 of 2004, 45 of 2005, 1 of 2006 Sched 2 Amended by Acts 6 of 2000, 5 of 2004 Throughout "Foreign Investment Board" updated to "Vanuatu Investment Promotion Authority", and "Foreign Investment Act" updated to "Vanuatu Foreign Investment Promotion Act"